In the recent decision of the High Court of Justice (Queens Bench Division) in HANLEY V. JC &A SOLICITORS [2018] All ER (D) 131 (Oct), the vexed issue of whether solicitors can be compelled by the court to supply file of papers held by them, was finally decided by Soole J on appeal from the Senior Court Costs Office.

The proprietorial right over documents in a solicitors’ file has always been a subject of judicial debate. The case of Leicestershire County Council v Michael Faraday and Partners Ltd[1941] 2 KB 205, Chantrey Martin v Martin[1953]2 WB 286 did set the tone that the Court will not compel professionals to disclose documents which they have some proprietorial right over.

However, a more recent trend was set in Mortgage Business v Taggart [2014] NICH 14 and PHILIP SWAIN v J C & A LIMITED [2018] EWHC B3 where, despite the courts’ admission that the solicitor’s own letter book would indeed be his own property, they confirmed that this does not preclude the client whose records are incomplete from asking to have copies of the correspondence with his former solicitor, subject to paying the necessary costs involved.

The Law Society’s Practice Note (21 March 2017) ‘Who owns the file?’ also provides that ownership of documents for this purpose is dependent on the nature of the relationship between the client and the solicitor. That is (a) where the solicitor is acting as professional advisor and (b) where the solicitor is an agent of the client. The second category is usually correspondence with third parties where the solicitor is sending or receiving correspondence on behalf of the client. On the normal principles of agency, these documents belong to the client. Where the solicitor is acting as professional advisor, ownership of documents depends on the purpose of the retainer and whether the production of the document was a stipulation of the retainer [citing Leicestershire CCChantrey Martin and Gomba). There is also a Law Society’s letter of 28 June 2018 which states that there is a discretionary power under the inherent jurisdiction in respect of copies of documents belonging to the solicitor, therefore supporting the decisions of Deeny J in Taggart and of Master Brown in Swain.

Thus in HANLEY, the Court was again, asked the question of whether, under the inherent jurisdiction over its officers and/or s. 68 Solicitors Act 1974, it has the power to order a solicitor to make and supply to his client (or former client) copies of documents which are the property of the solicitor, subject to payment of reasonable costs for the task.

In HANLEY, the appellant had retained the respondent solicitors’ firm in relation to the recovery of compensation for injuries sustained in road traffic accidents. The retainers had been on the terms of a conditional fee agreement, limiting the respondent’s recovery of its success fee to a statutory maximum of 25% of the relevant damages recovered. In each case, the appellants subsequently instructed fresh solicitors for the initial purpose of obtaining advice on whether to exercise their right to a detailed assessment of the respondents’ fees pursuant to s 70 of the Solicitors Act 1974 (SA 1974).

Both respondents provided copies of the appellants’ documents when requested but refused to provide copies of their own documents. The first respondent suggested payment of £644, comprising of 4 hours of a fee earner’s time, in return for the copies, which was refused.

The appellants sought an order pursuant to SA 1974 s 68 for delivery of such part of the respondents’ files over which the appellants had or did not have proprietary rights. The appellants claimed entitlement to copies of documents in a number of categories listed to which they asserted no proprietary rights, including:

(i) any electronic communications;

(ii) letters written by the appellants to the respondents;

(iii) letters written by the respondents to the appellants;

(iv) letters written by the respondents to third parties;

(v) documents sent by the appellants to the respondents during the retainer;

(vi) attendance notes prepared for the benefit and protection of the respondents;

(vii) time sheets, invoices and cash accounts; and

(viii) documents claimed pursuant to the Data Protection Act 1988.

The appellant relied on the cases of the cases of re Thomson (1855) 20 Beav 544 and re Wheatcroft(1877) 6 Ch D 97. The Senior Courts Costs Office (SCCO) however concluded that the cases of re Thomson (1855) 20 Beav 544 and re Wheatcroft(1877) 6 Ch D 97 relied on by the first appellant provided no authority for the proposition that the inherent jurisdiction permitted orders in respect of documents over which the solicitors but not the clients, had proprietorial rights.

On Appeal, having considered all previous authorities on the issue, Soole J held that the court had no jurisdiction to make orders under the inherent jurisdiction and/or s 68 of the Solicitors Act 1974 in respect of documents which were the property of the solicitor. There was no explicit legal basis for such an order and the authorities provided no basis to suggest that the court had a discretion under the inherent jurisdiction to order delivery up or make other orders in respect of documents which belonged to the solicitor.

Thus, the learned Judge disagrees with the decisions of Deeny J in Taggart and of Master Brown in Swain; and with the proposition in the Law Society’s letter of 28 June 2018 that there is a discretionary power under the inherent jurisdiction in respect of copies of documents belonging to the solicitor. The learned Judge has also set a new trend which most solicitors would hope to be upheld by senior appellate courts.

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CERTIFICATE OF OCCUPANCY: AN INDEFEASIBLE TITLE?

  1. INTRODUCTION
  • Since the advent of the Land Use Act in 1978, Certificate of Occupancy has become the thrust and the main title document that most land owners in Nigeria hold or seek to hold. Prior to the enactment of the Land Use Act, title documents like Land Certificate, Purchase Receipt and Registered Conveyance were   in use. While all these conferred on its holders freehold interest in the landed properties in question, Certificate of Occupancy only confers leasehold of a specific term on its holder. Thus while holders of a Registered Conveyance, for example, own the land absolutely, holder of a Certificate of Occupancy only holds the land for a period of time (99 years in this case)
  • Many a writer had advocated the point that holders of Registered Conveyances have a superior title over a piece of land than someone with a Certificate of Occupancy but that is not an argument within the scope of this article.
  • In fact, the drift since the passage of the Land Use Act is that holder of Registered Conveyance applies for a Certificate of Occupancy and where this happens, it means in principle that he has converted his freehold interest into leasehold interest, even though the law does not mandate a holder of Registered Conveyance to apply for Certificate of Occupancy.[1]
  • However, Certificate of Occupancy has become the most popular piece of evidence of title. Reason for its prominence is not far-fetched. It is statutorily provided for as evidence of title, since the Land Use Act now vests all land in a given state in Nigeria in the governor of such state. It then follows that whoever lays claim to any land must do so with the consent of its owner – the governor[2]. For this reason financial institutions which still regard landed property as the most reliable form of collateral for its facilities, do have preference for Certificate of Occupancy over other land documents.
  • The Supreme Court confirmed this position when it held in the case of GRACE MADU VS DR. BETRAM MADU[3] that-

“The settled law in grant of C of O is that once a person is granted a C of O over a parcel of land, he is entitled to hold that parcel of land to the exclusion of any other person unless the C of O is for good reasons, revoked by the same authority that granted it…[4]

  1. IS IT AN INDEFEASIBLE PROOF OF TITLE?
  • Sequel to this growing importance of the Certificate of Occupancy as mentioned in the preceding paragraphs, the question now begging for answer is whether a holder of a Certificate of Occupancy has an indefeasible proof of title against an adverse claimant?
  • In this regard, it is important to mention that section 9(1) & (2) of the Land Use Act provides as follows:

 “It shall be lawful for the Governor;

(a) When granting a statutory right of occupancy to any person;

(b) When any person is in occupation of land under a customary right of occupancy and applies in the prescribed manner; or

(c) When any person is entitled to a statutory right of occupancy, to issue a certificate under his hand in evidence of such right of occupancy. Such certificate shall be termed a certificate of occupancy and there shall be paid thereof, by the person in whose name it is used, such fee (if any) as may be prescribed”

  • Thus the law recognizes the right of persons in occupation of a given piece of land whether they have applied for Certificate of Occupancy or not. It is not then unusual to hear of cases of a customary occupier of a piece of land challenging a holder of Certificate of Occupancy over the same property.
  • Of more interest is the scenario where there are two adverse claimants each armed with a Certificate of Occupancy over the same landed property. Can this mean the two Certificates of Occupancy are valid and indefeasible against the same piece of land? The positions of the court in the succeeding paragraphs are instructive.
  • In CHIROMA V.SUWA[5] the plaintiff had applied for and obtained a statutory right of occupancy over a parcel of land over which the defendant had earlier acquired an equitable interest. The court rejected the plaintiff’s claim and held that the governor’s grant could not defeat the defendant’s prior interest.  Does this mean that the Certificate of Occupancy can be defeated and it mere presence does not in itself confer title on the holder?
  • The Supreme Court in GRACE MADU’s case[6] put the position as follows:

“The Certificate also raises the presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. It should however be noted that the presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy in which case the Certificate of Occupancy will stand revoked by the court”.

  • The above position consolidated an earlier Supreme Court’s decision in the millennium case of SUNMONU OLOHUNDE & ANOR VS PROFESSOR S.K. ADEYOJU[7] where the Court toed the line of OGUNLEYE V. ONI[8] that a Certificate of Occupancy is not a conclusive evidence of title in favour of its holder, when it held that-

“The point must be stressed that a certificate of statutory or customary right of occupancy issued under the Land Use Act, 1978 cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is, at best, only a prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and rendered invalid and null and void”

  • It is thus trite that where a Certificate of Occupancy is irregularly issued to a holder, the court has the power to declare the Certificate of Occupancy a nullity and same can be set aside. This position was well adumbrated by the Court of Appeal in the following cases: In OFOEZE V. OGUGUA[9], the Court held that Certificate of Occupancy does not confer an indefeasible title to land. This trend was followed in ANGBAZO V. SULE[10] while in MBASHINYA V. LIMAN[11] the court held that the right of an existing holder or occupier of a parcel of land is not automatically extinguished by a mere issuance of a Certificate of Occupancy to another person under the colour of a person in occupation. It does not extinguish the right of any other person having a customary right over the land.
  • Consequently, any person without title to a parcel of land in respect of which a Certificate of Occupancy was issued acquires no right or interest, which he did not have before because “ex Nihilo Nihil Fit” that is, we cannot build something on nothing.

3. CONCLUSION

  • It is thus safe to conclude that a prospective land buyer, mortgagee and financial institutions should go beyond mere sighting of the Certificate of Occupancy and embarks on a comprehensive due diligence to deduce pre-Land Use Act title, which will prove the veracity or otherwise of the issued Certificate of Occupancy.
  • In this present time, where land are appreciably expensive, it would be unwise for any proposed purchaser to proceed into any land transaction, without consulting a real property Law Firm with founded expertise to provide him with adequate pre-transaction, transaction and post-transaction advisory services.
  • For the benefit of emphasis, we reiterate that a Certificate of Occupancy may be a good title, where there exists a valid right of occupancy by the holder before the advent of the Land Use Act. However, where a Certificate of Occupancy is issued to a holder without due regard to the rights and interest of an occupier or holder of a right of occupancy, such a Certificate of Occupancy evidences nothing and does not confer any right or interests in the affected land.

[1] See sections 1. 2. 5 & 6 of the Land Use Act

[2] See again the case of GRACE MADU VS DR. BETRAM MADU (2008]  2-3 S. C.(PT. II) 109

[3] (supra)

[4] In the words of PER MUHAMMED, JSC (as he then was)

[5]  (1986) 1NWLR PT 19

[6]  In the supra

[7] 2000] 6 SCNJ 470(2000) 6 S.C.(PART III)118

[8]  (1990) 2 NWLR Pt 745

[9] (1996) 6 NWLR Part 455 page 451 @ 454

[10] (1996) 7 NWLR Pt 461, Pg 479 @ 482,

[11] (1996) 3 NWLR Pt 434 Pg. 62 at page 64

I AM A FOREIGNER: CAN I OWN A LANDED PROPERTY IN NIGERIA?

INTRODUCTION
Land is a fundamental resource of the nation state. Without land, without territory, there can be no nation state. Housing, agriculture, natural resource use, and national security concerns are all based upon land management and use. As the modern state emerged, those who were not citizens were classified as “foreigners” or “aliens” who, by their very status as such, were deemed not to be appropriate recipients of full rights of land ownership and use.
Over time, in an ever more interdependent world, many attitudes towards “foreigners” have changed, a process assisted by global communications, increases in foreign investments and the growth of international trade. In many areas States mutually accept the rights of each other’s citizens to receive the same treatment as their own citizens, and this trend is likely to continue_. However as regards land, many States still restrict its ownership and use by foreigners. Most States of the world adopt diverse legal and administrative techniques, which various countries have adopted to prohibit, restrict and regulate the ownership and use of land by foreigners whether they be natural or legal persons.
A number of states such as Germany, France, the United Kingdom, Portugal, the Netherlands, Belgium and Luxembourg, do not have any restrictions on foreigners as regards land ownership or use, in that foreigners are allowed to own land on an equal basis to nationals. Other countries which apparently also have no specific restrictions on foreign ownership or use of land include Argentina, Chile, Colombia, Paraguay, Uruguay and Venezuela.
The presence or absence of restrictions and regulations designed to limit or control foreign land ownership, may not be the end of the matter. If the purchase of land by a foreigner is for investment purposes, or ancillary to investment, it may be subject to the rules and restrictions set out in a state’s foreign investment law. A comparison of foreign investment restrictions is not the subject of this study. Similarly different tax treatment and foreign exchange restrictions and controls may effectively constitute indirect restrictions on foreign ownership or use of land.
The aim of this article however, is to examine the restrictions (if any) or the level of control on foreign ownership of land in Nigeria and questions arising such as: who a foreigner or alien is? What is the nature of control on foreign ownership of land in Nigeria? and more are all discussed in the succeeding paragraphs.

WHO IS A “FOREIGNER” OR AN “ALIEN”

2.1. The control of foreign ownership of Land in Nigeria is regulated by the “Acquisition of Lands by Alien Laws” of the respective States of the Federation. “Land” is a matter within the legislative competence of the Federal and State Governments_and foreign acquisition of land is regulated by the Acquisition of Lands by Alien Laws” of each State except for Abuja, which has an “Acquisition of Lands by Alien Act” being an Act of the National Assembly made for the Federal Capital Territory.
2.3. For the purpose of this piece, we shall continuously referenced the “Acquisition of Lands by Alien Law of Lagos”, which provisions are in impari materia_ to the provisions of the “Acquisition of Lands by Alien Laws” of the other States of the Federation and the Federal Capital Territory (Abuja).
2.4. The Acquisition of Lands by Alien Law (ALAL) of Lagos_ defines an “alien” as –

“(a)any person other than a native of Nigeria; and

(b) any company or association or body of persons corporate or unincorporated other than:
(i) a corporate body (in which the majority of the shares are held by natives of Nigeria) established specifically by or under any Act or Law which empowers that body of acquire and hold land;
(ii) a corporate body incorporated under the provisions of the Companies and Allied Matter Act- Part C- Incorporated Trustees or any other Act or Law containing general provisions for incorporation where the corporate body is composed solely of natives of Nigeria;
(iii) a corporate body established under any Law of the State relating to local government or education and empowered by that Law to acquire and hold land;
(iv) a co-operative society the majority of the members of which are natives of Nigeria and which is registered under the provisions of any Law of the State relating to co-operative society;
(v) a company or association or body of persons corporate or unincorporated which the Governor may by order made under section 6(2) declare to be exempt from the provisions of this law”

2.5. For ease of reference, the above definition of “alien” could be further simplified under the two heads of an “individual alien” and a “corporate alien”. A close perusal of the provisions of the ALAL above shows that an “individual alien” is –

“any person other than a native of Nigeria”.

Who then is a “Native of Nigeria”?. According to the ALAL, a “Native of Nigeria” is-

“…a natural-born or indigene_ of Nigeria; any individual, company or association or body of persons corporate or unincorporated that is not an “alien” for the purposes of this law”_

2.6. It may thus be safe to imply that anybody born in Nigeria is not an alien. However, what about persons who become Nigeria citizens by naturalization or registration (those who are not natural-born or indigene of Nigeria)? It is clear that the ALAL does not have these sets of persons in contemplation at the time of its enactment. Thus there is a lacuna in the ALAL.
2.7. Regardless of the obvious lacuna in the ALAL, a careful consideration of relevant provisions of parts 3_ & 4_ of the Nigeria Constitution will show that all such persons who are Nigeria citizens by registration or naturalization are equally entitled to own and manage immoveable (landed) property anywhere in Nigeria without any discrimination due to their circumstances of birth, place of origin, sex, etc.
2.8. Whilst it is now agreed that all Nigerian Citizens (whether natural-born, naturalized or so registered) are non-aliens and are thus entitled to own and manage landed property anywhere in the country without any restriction, it is important to know who a “corporate alien” is to enable us identify the thin line between a corporate citizen and a corporate alien for the purpose of the ALAL.
2.9. A second look at the definition of an ‘alien” under the ALAL revealed that 5 (five) forms of corporate citizens exist for the purpose of the ALAL. These are:

a. Local or Foreign Corporate Bodies set up under any law (provided majority shares in these corporate bodies are owned by “native of Nigeria”;
b. Corporate Bodies set up under CAMA or other Law wherein such a company is owned solely by “natives of Nigeria”
c. Company or Association exempted by the Governor by virtue of the ALAL.
d. Corporate Body established by State Laws for Local Government or education purpose; and
e. Co-operative societies (provided it is set up in accordance with State Laws and majority of its members are “native of Nigeria”.
Any other corporate body other than the above mentioned shall be deemed a ‘corporate alien” and shall be subject to the provisions of ALAL. A quick recap of the definition of “native of Nigeria” which means “…company or association or body of persons corporate or unincorporated that is not alien”, will show that all the above stated corporate citizens may safely be classified as “native of Nigeria” and any corporate body, association or body of persons outside the above scope shall be regarded as alien for the purpose of the ALAL.
2.10. It also means that these companies (native of Nigeria) could be shareholders in the case of (a) “Local or Foreign Corporate Bodies set up under any law (provided majority shares in these corporate bodies are owned by “native of Nigeria” ; in the case of (b) “a corporate body incorporated under CAMA or Laws other than CAMA where the corporate body is solely owed by native of Nigeria” or in the case of (e) “co-operative societies (provided it is set up in accordance with State Laws and majority of its members are “native of Nigeria”.
2.11. It is thus safe to conclude that anybody or corporate entity, who does not fall under the individual and corporate citizens concepts highlighted above is an alien and can only acquire interest or rights in Land in Nigeria it complies with the provision of the ALAL

CAN A FOERIGNER OR ALIEN OWN LAND?

YES, an alien or a foreigner can own land in Nigeria, but this is subject to certain restrictions identified under the ALAL. The chief restriction under ALAL is the requirement for State Governor’s_ written approval before instrument of transfer could be lawfully executed. Failing which subsequent transfer instrument may be regarded as void abinitio.
ALAL_ provides that-
“No alien shall acquire any interest or right in or over land from a native of Nigeria unless the transaction under which the interest or right is acquired has been previously approved in writing by the Governor”.

ALAL_ further provides that –
“Any agreement and any instrument_ in writing or under seal by or under which an alien purports to acquire any interest or right in or over any land (other than an interest or right acquired pursuant to the provisions of this Law and regulations or orders made there under) and which forms part of or gives effect to a transaction that has not been duly approved in accordance with the provisions of this Law shall be void and of no effect”

Putting it simply, an alien can acquire interest or rights in Land from a Native of Nigeria, provided the written approval of the Governor is first sought and had_before the relevant instruments are executed between the alien and the native of Nigeria.

IMPORTANT FEATURES OF THE GOVERNOR’S WRITTEN APPROVAL

Application for the Governor’s written approval shall be made in the prescribed form set out in first schedule of the Acquisition of Lands by Alien Regulations and it is submitted to the State’s Land Commissioner for approval. The application shall be accompanied by a Treasury Receipt evidencing payment of the statutory fee_.
The granting of Governor’s written approval shall be at the discretion of the Governor._
Governor’s written approval is not required with respect to alien’s acquisition of interest or right in Land where such interest or right in the land is less than 3 years_ or where it concerns an interest or right in land subject to the State land Laws_
Upon the procurement of the Governor’s written approval, parties may go on to evidence the transaction by executing a registrable instrument.
The interest or right to be acquired shall not be greater than a term of (25) twenty-five years, including any option to renew.
The Governor has the discretion to waive or modify the conditions stated above, include the condition concerning term of years to be granted._
The Governor’s written approval shall be conveyed to the applicant in the form set out in the ALAL Regulation_

CONCLUSION

There is no gain-saying the fact that an alien can acquire interest or right in land but the complementary restrictions attached to acquisition of land by alien make it so uninteresting and daunting for most aliens/foreigners. The fact that Aliens need Governor’s written approval and cannot even acquire a term in excess of 25 years speak volume of the need to inform the public on some of these concerns.
Our expertise in assisting aliens/foreigners in setting up land acquisition transactions in a zero-restriction manner are some of the services on offer; and whatever your decisions are, we are ready to work hand in glove with you through the entire process.

                           INTELLECTUAL PROPERTY (IP) RIGHTS IN NIGERIA: A LEGAL DIALECTICS                                                                                                                                    By Ademola Samuel Adeniyi*[1]

1.       INTRODUCTION

The Intellectual Property (IP) regime in Nigeria emanated from the English common law and the doctrine of Equity of the late 19th century and is fast maturing into a great earner of foreign investments in Nigeria. This progression is aided by the desires and efforts of the government and the other players in the sector to attain an enviable and investment-friendly jurisdiction. Nigeria, no doubt, is the next emerging destination after China for Foreign Direct Investments (FDIs) and this explains the government drive to bring the Nigerian IP system at par with international practice and standard.

The purpose of this article is enlightened, mostly non-lawyer business individuals and corporate enterprises on the repertoire of terms and the workings of IP in Nigeria. This article might not answer all your IP inquiries but would definitely wet your appetite of IP knowledge; and equip you with just-enough information to make informed business decisions.

2.      COPYRIGHT

Copyright is a significant specie of Intellectual Property which includes: literary works, musical works, artistic works, cinematographic Films, sound recordings, and broadcast. The Nigerian copyright practice is governed by the Copyright Act Cap. C28 (LFN 2004) Literary works include novels, stories, choreographic works, computer programmes and etc. musical works also include works composed for accompaniment. Artistic works include painting, drawing, woodcut and maps, etc.

Cinematographic film include fixation of sequence of visual image that can be seen and associated sound tracts that can be held. Sound recording on the other hand is a fixation of sequence of sound capable of being held but does not include sound track associated with cinematographic films. The above works will be eligible for copyright if sufficient efforts have been expended to give them an original character (i.e. originality) and if the works have been fixed in a medium of expression (i.e. fixation) now known or later to be developed. However, an artistic work made with the intention to be used as a model or pattern to be multiplied by an industrial process will not pass for copyright but will qualify as an industrial design which shall be aptly described later in this article.  

2.1.             WHO IS ENTITLED TO COPYRIGHT IN NIGERIA? The following persons are entitled to copyright in Nigeria:

1.         Persons who are either Nigerian citizens or domiciled in Nigeria;

2.        Persons whose works are first published or made in Nigeria;

3.        Persons who are employed to make a work in the course of their employments;

4.        Persons who are commissioned to make a work;

5.        Proprietors whose works are made by authors in course of their employment by the proprietor for the purpose of publication in a newspaper, magazine or similar periodicals;

6.        Persons to whom the copyright has been transferred either by assignment or testamentary dispositions; persons to whom license have been granted;

7.         The Government, where it has commissioned someone to make a work;

8.         Companies registered in Nigeria which produces works of copyright;

9.         Non- Nigerians who are neither domiciled in Nigeria but belong to a  Convention Country to which Nigeria is a party provided their works are first published in such convention country, or by the United nations, the African Union or ECOWAS.

2.2.            DURATION OF COPYRIGHT

Copyright in Literary, Musical and Artistic works other than photographs shall expire seventy years after the end of the year in which the author dies. If the author is a corporate body, seventy years after the end of the year in which it was first published. In case of cinematographic films, sound recording and photographs, the copyright shall subsist for fifty years after the recording was first made and fifty years after the shot was first taken in case of photographs. With respect to Broadcast works, the copyright will expire fifty years after the end of the year in which the broadcast first took place.  

2.3.            THE RIGHTS CONFERRED ON A COPYRIGHT OWNER

Copyright in Literary and Musical works for example guarantee the exclusive right of the owner to reproduce, publish, perform, adapt, distribute, sell and broadcast An artistic work will also guarantee the owner the exclusive rights of control of the reproduction, publication and adaptation of the work. In the case of a cinematographic film the copyright owner has the exclusive control to make copies, record and distribute copies. In respect of sound recording, the copyright owner can exclusively control the direct or indirect reproduction and distribution. Lastly, the copyright owner of a broadcast can also exclusively control the recording and communication of the work.

2.4.            COPYRIGHT ADMINISTRATION IN NIGERIA

The Nigerian Copyright Commission (the Commission) is the regulatory body for copyright administration in Nigeria.  The Commission is an agency of the Federal government under the Ministry of Trade, Commerce and Industry. The Commission establishes Collecting Societies which are authorized to collect dues, royalties and fees of Copyright owners of the particular specie of work for which they are set up. An example of this is the Musical Society of Nigeria (MCSN) which collects dues on behalf of their members for the use, license and assignment of their works.

The Commission provides for Copyright Inspectors whose primary duty is the protection of copyright against infringement in Nigeria. It must be noted however that the law does not mandate the registration of copyright in Nigeria. The law only requires that publishers, printers, producers and manufacturers of works should keep records of all works produced by them showing the name of the author, title, year of publication and the quantity of the works produced.

The Commission is also empowered to maintain an effective data bank on authors and their works Nevertheless, in practice, the Commission does register copyrights upon being notified by the copyright owners under the Copyright Notification Scheme of the Commission, thus creating a centralized copyright database, like we have in other jurisdictions. It must nonetheless be emphasized that registration of copyright works is not a requirement of copyright itself. It is merely required for administrative convenience and purpose. Thus failure to notify or register does not whittle down the copyright of any work; registration only adds documentary ownership value to an existing copyright work.

2.5.            COPYRIGHT NOTIFICATION

Copyright Notification is a scheme designed by the Nigerian Copyright Commission to enable creators of certain copyright works or persons who have acquired rights in these works to give notice of their copyright to the Nigerian Copyright Commission or notice of any transfer of right thereof. Such facts as are disclosed in the notification will form part of the database of the Commission mandated to be kept under the Copyright Act, and has evidential value in proof of the possible date of creation of the work and other facts stated in the notification form.[2]  

2.6.            PROCEDURE FOR COPYRIGHT NOTIFICATION

  1. The applicant will fill the form in line with the instructions provided on it, and ensure that the declaration therein is endorsed before a Commissioner for oaths or Notary Public.
  2. The completed application form with required copies of the work, which the applicant is seeking notification should be returned to the Commission’s office nearest to the applicant and accompanied with the required documents and evidence of payment of Notification fee of N6, 000.00 (Six Thousand Naira).
  3. Upon receipt of the form, the Commission processes same and issues applicant with a Notification Acknowledgement Certificate.

  2.7.            NEIGHBOURING RIGHT OR PERFORMERS’ RIGHT

Since the works of a public performer though original but is not fixed in a tangible medium as required by the law, such works are not eligible for copyright protection. However, the Nigerian Copyright Act[3] recognizes such works as performer’s right and gives such performer the exclusive right to control with respect to his performance, the performing; recording; live broadcasting; reproducing in any material form; and adaptation of the performance. Performance here includes dramatic and musical performance and live performance of literary recital or rendition.  

3.      TRADE MARK (TM)

A trade mark (TM) is a mark used or proposed to be used in relation to goods for the purpose of indicating a connection in the course of the trade between the goods and some persons having the right either as proprietor or as registered user to use the mark. This mark may include a devise, brand, heading, label, ticket, name, signature, word letter, numeral or a combination of these marks. The Nigerian Trademark Act Cap T13 LFN 2004 regulates trademarks registration and practice in Nigeria.  

3.1.             TRADEMARKS REGISTRATION

The law requires that a Register of TM must be kept by the Registrar of TM. The Register shall contain all registered TMs with the names, addresses and other details of their proprietors.

The filing requirements for TM registration in Nigeria are as follows:

(1)               An application form containing the full names, street address and description of the applicant

(2)              List of good and services

(3)              A simple signed power of Attorney

(4)              15 prints of the mark.

However the law disallows the registration of Trade Marks that are scandalous, deceptive and capable of causing confusion or contrary to law or morality. Neither will the Registrar register a Trade Mark which is identical or nearly resembles an existing registered Trade Mark belonging to another proprietor.  

3.2.            VALIDITY OF REGISTRATION

In order for a Trade Mark to be registrable, it must contain at least one of the following:

(1)               The name of the company, individual of firm represented in a particular manner;

(2)              The signature of the applicant or his predecessor in his business;

(3)              An invented word or invented words;

(4)              A word having no direct reference to the character or quality of the goods and not by its ordinary signification, a geographical name or a surname; and

(5)              Any other distinctive mark.

A mark is said to be distinctive when it is used in relation to a good or service to distinguish the said good or service from that of the Trade Mark’s proprietor in the course of trade from other goods or services.

  3.3.            EFFECT OF REGISTRATION AND NON-REGISTRATION

The proprietor shall upon registration be entitled to exclusively control over the use of the Trade Mark in relation to the goods and services under which it is registered. On the other hand, A Trade Mark which is unregistered will prevent the Trade Mark proprietor from instituting any proceeding to prevent or to receive damages for infringement of his Trade Mark under the Trade Marks Act. However, this does not affect his right to bring an action in passing-off of goods at common law.  

3.4.            DURATION OF TM

Trade Mark shall subsist for a period of seven years from the date of first registration and can be renewed from time to time in accordance with the provision of the law.  

3.5.            ASSIGNMENT OF TRADE MARK AND PERMITTED USE

A Trade Mark ( whether registered or not) is assignable and transmissible with respect to either all  or some of those goods in respect of which it is registered, or in connection with the goodwill of a business. However, with respect of a registered Trade Mark, record of such Trade Mark and assignment made in respect of it shall be registered in the Register of Trade Mark and shall be made available for the inspection of the public. In the same vein, a person other than the Proprietor of a Trade Mark may be registered as a registered user of the Trade Mark in relation to all or any other goods in respect of which it is registered.

The law also allows for defensive registration of a well-known or invented mark in respect of familiar goods. This simply means that marks, which have become so well-known that there use in relation to a particular goods for which they are not registered, would likely to be taken as Trade Mark for those familiar goods for which they are not registered, the person entitled to the Trade Mark may make an application in respect of such familiar goods to be registered as Defensive Trade Mark. Lastly, applications for Trade Mark registration from Trade Mark owners, who have their Trade Marks registered in countries which are parties to a Convention to which Nigeria is a party, may be registered in priority to other applications.

4.      PATENT AND INDUSTRIAL DESIGNS

A patent is described simply as a monopoly in respect of an invention. The Patent Act 1970 (now designated Cap P2, LFN 2004) governs the registration and practice of patent in Nigeria. To qualify for patent, an invention must comply with the following requirements:

(1)               it must be a new or novel invention or an improvement upon a patented invention; which

(2)              result from an inventive activity; and

(3)              It is capable of industrial application.

An invention is new or novel if it does not form part of the state of the art. State of the art means everything concerning that art or field of knowledge which has been made available to the public anywhere or anytime. Patent cannot however be obtained in respect of plant or animal or any biological process for the production of plants and animals. Neither will patent be granted in respect of inventions which exploitation would be contrary to public order or morality, for example cloning.  

4.1.             RIGHT CONFERRED BY PATENT

A patent confers on the patentee the right to preclude any person from doing the following:

(1)               Where the patent is granted in respect of product, the act of making, importing, selling, or using the patent or stocking it for the purpose of sale or use.

(2)              Where the patent has been granted in respect of process, the  act of applying the process

4.2.            PATENT APPLICATION PROCEDURE

All patent applications are made in the prescribed form. The form may be accompanied by the following:

(1)               A Power of Attorney (if made by an agent).

(2)              CTC of priority application where applicable.

(3)              Copy of PCT international publication( where necessary)

(4)              A declaration signed by the true inventor that his name and address be mentioned in the application.

(5)              Prescribed fee.

4.3.            WHO IS ENTITLED TO PATENT?

The right to patent is vested in the person who is the first to file whether or not he is the true inventor. Where the invention is made in the course of employment or in the execution of a Contract for the performance of a specific work, the right of a patent in the invention shall be vested in the employer. The employee may however be entitled to fair remuneration if his contract does not require him to make such invention or if the invention is of exceptional importance.

4.4.           DURATION, LAPSE, SURRENDER AND NULLITY OF PATENT

Right in a patent subsist for a period of 20 years from the date of filling of the relevant patent application and it is not renewable. Patent shall lapse if the prescribed annual fees are not duly paid upon the expiry of the period of grace Similarly, a patentee may by a written declaration addressed to the Registrar of Patent, surrender his patent. The surrender shall take effect upon registration. A patent is nullified where the description of the invention or claim does not conform to the provision of the law or if it is defeated by a prior application from an earlier foreign priority.

  4.5.            LICENSE OF PATENT

A patentee is entitled by the law to apply in writing to the Registrar for the words “Licenses of Right” to be registered in respect of his patent; the Registrar shall enter the words accordingly in the register. Upon this entry, any person may come forth to obtain a license to exploit the patent on such terms as the parties may agree. Such licensee is however barred from assigning the license or granting further license in respect of the license.

4.6.           INDUSTRIAL DESIGN (ID)

An Industrial Design according to the Patent and Designs Act is any combination of lines, colours or both; any three-dimensional forms (whether or not associated with colours) intended by the creator to be used as a model or pattern to be multiplied by an industrial process.

4.7.            ELIGIBILITY FOR REGISTRATION

An Industrial Design is registrable if it is new and is not contrary to public order or morality. A design made available to the public anywhere and at anytime before the date of registration is not new. However an Industrial Design will not be deemed available to the public solely because the creator has exhibited it in an official or officially recognized place within the period of six month preceding the filling of the application for registration.  

4.8.           INDUSTRIAL DESIGN APPLICATION

An application for the registration of an industrial design shall be made to the Registrar of Patent and Designs and such application shall contain the following:

(1)               A request for the registration of the design.

(2)              The applicant’s full names and address or an address of service in Nigeria if the creator lives outside Nigeria.

(3)              A specimen of the design or a photograph or a graphic representation of the design.

(4)              An indication of the kind of product for which the design can be used and such other matters as may be prescribed.

(5)              Six set of formal drawing

(6)              A power of attorney( where applicable)

(7)              Priority application ( where applicable)

(8)              A prescribed fee  

4.9.           DURATION OF INDUSTRIAL DESIGN

An Industrial Design shall be effective in the first instance for five years from the date of the application for registration and may be renewed for two further consecutive periods of five years each.

NB: the Provisions on who is entitled to Industrial Design, nullity of Industrial Design, license and transfer of Industrial Design are the same as in patent. 

 5.      INFRINGEMENT AND ENFORCEMENT OF IP RIGHTS

5.1.             INFRINGEMENTS

  1. COPYRIGHT. The Copyright law provides that an infringement of the rights conferred on a copyright owner has occurred if anybody who without the license or authorization of the owner of the copyright does an act which is controlled by copyright, such a person is said to have infringed on the owner’s copyright.
  2. TRADEMARK: In similar vein, a registered Trade Mark would be deemed to have been infringed upon under the Nigerian Trade Marks Act if any person no being the proprietor, assignee or registered user of the TM uses a mark identical with or so nearly resembling it that it can likely deceive or cause confusion in the course of trade, in relation to goods in respect of which it is registered.
  3. PATENT AND INDUSTRIAL DESIGNS: where a person other than the patentee or the Industrial Design owner or any of their respective assignees or privies does or causes any act to be done with regards to the use of a Patent or Design, it shall amount to an infringement of such patent or Industrial Design as the case may be.

  5.2.            ENFORCEMENT:

Upon the occurrence of any of the such infringements, the Copyright owner, Trade Mark owner, the patentee or Industrial Design owner respectively may therefore bring a suit against such violator and may be entitled to reliefs by way of damages, injunction (including an Anton Piller order) ,rendering of account and such relevant reliefs as the court may deemed necessary in the circumstance.

Furthermore, there exist other administrative enforcement options formulated to protect IP rights in Nigeria. An instance could stem from the Strategic Action against Piracy (STRAP) initiative of the Copyright Commission. STRAP which ensures an intensified fight against piracy and protects IP rights with the use of hologram security device. Nigeria also boasts of an Industrial Property Tribunal set up under the Commercial Law Department of the Ministry of Commerce and Tourism.

6.      NOTAP REGULATIONS AND REQUIREMENTS.

NOTAP is an acronym for National Office for Technology Acquisition and Promotion and it is under the supervision of the Federal Ministry of Science and Technology.

The major regulatory objective of NOTAP concerns the evaluation of the Technology Transfer Agreement to ensure that:

(1)               The terms and conditions contained in the agreement are equitable and fair to all parties;

(2)              Payments involved in the agreements are commensurate with the obligation of the transferors;

(3)              Adequate safeguard for effective transfer of know-how to indigenous enterprise in the terms and conditions of the agreement;

(4)              Tie-in-clauses which impede economic gains and innovative capability such as non-reciprocal improvements etc are expunged;

(5)              Relevant data are drawn for national technology policy formulation; and

(6)              Commercial transactions are in compliance with the goals and aspirations of technology policy.    

6.1.             THE REQUIREMENT FOR REGISTRATION OF TECHNOLOGY TRANSFER AGREEMENT

According to the law, an agreement involves the transfer of technology if its purpose or intent is, in the opinion of NOTAP, wholly or partially connected with any of the following matter:

(1)               The use of Trade Mark

(2)              The right to use patented invention.

(3)              The supply of technical expertise in the form of the preparation of plans, diagrams, operating manuals or any other form of technical assistance of a description whatsoever.

(4)              The supply of basic and detailed engineering.

(5)              The supply of machinery and plant.

(6)              The provision of operating staff or managerial assistance and the training of personnel.    

6.2.            PROCEDURE FOR REGISTRATION OF TECHNOLOGY TRANSFER AGREEMENT

All application for the registration of Technology Transfer Agreement shall be addressed to the Director of NOTAP. The following are the procedures for registration of Technology Transfer Agreement at NOTAP:

(1)               Completion and submission of all NOTAP forms and other annexed documents.

(2)              Communication to companies on observations and amendment to agreement if any, by NOTAP.

(3)              Issuance of letter of approval to companies for implementation of agreement.

(4)              Payment of presentation fee.    

6.3.            EFFECT OF NON- REGISTRATION

Non-registration of Technology Transfer Agreement under the law does not render the contract or such Technology Transfer Agreement void or unenforceable, it only frustrates the transfer of any fee or payment due under the contract to the account of the alien outside Nigeria since there is a lack of relevant data on technological inflow for policy formulation.

  7      TREATIES

Nigeria is a party to the following treaties and enjoys the membership of the following international bodies:

(1)               Membership of WIPO Treaties

(2)              WIPO Convention since April 1995

(3)              Paris Convention ( Industrial Property) since September 1963

(4)              Berne Convention ( Literary and Artistic Works), since September 1993

(5)              Patent Co-operation Treaty(1970) , since May, 2005.

(6)              PLT (Patent Law Treaty), since April 2005.

(7)              Rome Convention( Performers, Producers of Phonograms and Broadcasting Organisations), since October 1993.

(8)              WTO, member and signatory to TRIPS Agreement, since January 1995.

(9)              Member of UCC (the Universal Convention on Copyright), since November 1961.    


* Ademola Samuel Adeniyi is an astute legal practitioner in Nigeria, with defined expertise in intellectual property law and communication law. He presently works as a counsel with Chief Rotimi Williams’ Chambers, in Lagos.
[2] See the NCC’s website for more information
[3] See section 23 of the Copyright Act, Cap C28, LFN, 2004

EXPERT COMMENTARY

ON

THE LEGAL FRAMEWORK FOR POWER GENERATION IN NIGERIA

 

*Ademola Samuel Adeniyi

1.           Section 62 of the Electric Power Sector Reform Act[1] creates the licensing regime for power companies in Nigeria. It provides that –

“No person , except in accordance with a license pursuant o this Act or deemed to have been under section 98 (2), shall  construct, own, or operate an undertaking other than an undertaking specified in subsection (2) of this section, or in any way engage in the business of :

  1. a.                  Electricity generation, excluding captive generation[2]
  2. b.                  Electricity transmission;
  3. c.                   System operation;
  4. d.                  Electricity distribution;
  5. e.                  Trading in electricity

2         However, a power generating company or such other person may construct, own or operate an undertaking for generating electricity without a license from the Nigerian Electricity Regulatory Commission (“the Commission”) provided its power generation capacity does not exceed the threshold of 1 megawatt (MW). Similarly, a distribution company or such other person may construct, own, or operate an undertaking for distribution of electricity provided the capacity does not exceed 100 kilowatts (KW) in aggregate[3].

3.       Section 64(3) of the Law[4] also provides the framework for grant of ‘generation license’.  It provides that-

The Commission may issue generation licenses to:

(a)           One or more of the successor companies formed under section 8, herein described as a ‘successor generation company’; or

(b)            One or more entities that are not successor companies formed under section 8, herein described as an Independent Power Producer’”

  1. Similarly, section 64(1) of the law states that-

“Subject to such terms and conditions as the Commission may fix in the License, a generation license shall as the circumstances may require, authorize the licensee to construct, own, operate and maintain a generation station for purposes of generation and supply of electricity in accordance with this Act.”.

5.                  Putting it clearly, any company can generate power without having to obtain license, provided the power generation does not extend beyond the 1 megawatt threshold. Where the targeted power generation exceeds 1 megawatt, a generation license must be sought and obtained from the Commission.


[1]  2005

[2]  Section 100 defines “captive generation” as generation of electricity for the purpose of consumption by the generator and which is consumed by the generator itself and not sold to a third party.

[3] See subsection 2 of section 62 of the Electric Power Sector Reform Act. 2005

[4] Section 64 of The Electric Power Sector reform Act, 2005

CORPORATE TRUST: A VERITABLE TOOL FOR THE EFFICIENT ADMINISTRATION OF ESTATE IN NIGERIA
*Ademola Samuel Adeniyi

1. INTRODUCTION

In 2009, I provided legal advisory services to executors of the Will of an eminent “Lagosian”. They required help in procuring probate for the estate of the deceased and we commenced the process immediately. We went through stages such as: form filing, rigorous property evaluation by the probate assessor; payment of the estate tax and; issuance of the probate letter.
However, it took us over 2 years to move from the property evaluation stage to payment of estate tax. I guess you are asking why? By the time the Government’s probate assessors confronted us with their evaluation of the deceased estate, it ran in to 2 Billion Naira or thereabout and; by virtue of the relevant law, 5% of the estate value is required to be paid as estate tax. So my Clients were faced with the herculean task of raising almost 100 Million Naira to offset estate tax.
It was indeed a daunting task because at the time, all the deceased’s accounts were on red alert and could not disburse monies to anyone in the absence of the deceased’s signature or a letter of probate/administration authorizing the executors to act in his stead.
Consequently, the beneficiaries of the deceased’s estate had to sell some of their personal and real properties to raise funds for the payment of estate tax. Thus, our payment of probate tax was only done in December, 2011 whilst probate was finally issued in February, 2012.

2. LESSON LEARNT

We realized that if we had a system in place that encouraged the transfer of all proprietary interests in the estate of the deceased to the intended beneficiaries whilst he was still alive, we would not have gone through the rigorous probate procedure neither would the beneficiaries have had to wait that long to benefit from the deceased’s estate.

3. WHAT CAN BE DONE?

There are few options open to everyone to enable them manage their estate whilst alive and transfer or ensure easy transfer upon their passing-on. Prominent amongst these options is the Corporate Trust Scheme (CTS).

3.1. What is “Corporate Trust Scheme”

Literarily put, it is a trust created through a vehicle called “Company”. It affords estate owners the opportunity to be shareholders in a “Trust Company” with their intended beneficiaries. It is better advised to set up this Trust Company before the estate owner/planner commences the acquisition of real and personal properties such that these properties can be acquired in the name of the Company.
However, in instances where the properties are already acquired in the personal name of the estate owner or in the name of a third party (original acquirer), they can be transferred into a Trust Company where the estate owner and the intended beneficiaries are equally the shareholders (subsequent acquirer).
Many a time, the estate owner’s shares in the Trust Company are “held in trust for himself and on behalf of other shareholders” (i.e. the intended beneficiaries of the trust). In the alternative, the estate owner may hold his shares “jointly with his beneficiaries” (who are also shareholders in the Trust Company), such that where the estate owner passes on, the beneficiaries or shareholders who held jointly with him survive him and would be recognized by the Company as having legal interests in the shares , which hitherto were jointly held with the beneficiaries/shareholders.
It is usually advised that estate owners should take as low as 1% of the shares in the Trust Company but must not hold above 25% in all instances; this is to avoid delays that may arise from the inability of the Company to take decision on issues requiring special resolutions, after the death of the estate owner.

3.2. What are the benefits of a Corporate Trust Scheme (CTS)?

• One of the major advantages of a CTS is that no estate tax is paid by the executors/administrators or beneficiaries to the Government. This is because no probate or letters of administration is required to administer the estate of the deceased estate owner since the proprietary rights in the estate is held by the Trust Company, which is a company with perpetual succession and would not die even after the death of its founder(s).
• Transmission of interest in shares held by a deceased estate owner to the shareholders is by operation of law and this instantaneously gives the shareholders/beneficiaries rights to the deceased estate owner’s shares in the company by virtue of their being beneficiaries of the interest in the shares or by virtue of their being joint owners .
• Another advantage of the CTS is that it ensures an effortless transfer of interests in the estate of the deceased estate owner to the surviving shareholders/joint holders/beneficiaries (as the case may be).
• There is no gainsaying the fact that CTS affords beneficiaries the opportunity to develop the estate by acquiring more properties and thereby encouraging estate expansion.

3.3. What are the drawbacks of a CTS

• The only identifiable disadvantage of the CTS is that where there is more than one beneficiary; it makes distribution of estate difficult as there are no specific assignments of interest to individual beneficiaries.

3.4. What are the other estate management options available?

Outside the CTS, the principle of joint ownership of property has been identified as a veritable option for efficient estate management.
More often than not, estate owners acquire property jointly with intended beneficiaries such that upon the demise of these estate owners, their interests in these properties will be transferred by operation of law to the joint owners (i.e. the intended beneficiaries) by virtue of the rule of survivorship.
This model also accommodates joint ownership of properties in estates by estate owners and Trust Corporations such that where such estate owners pass on, their interests in the estate will pass to the Trust Corporation by virtue of the rule of survivorship.
The merits and benefits of the Joint Ownership scheme are similar to the CTS and it is adaptable to any class of person or family arrangement regardless of its size, estate value and societal importance.

4. GOING FORWARD

You may contact the author for more information and advice (adeadeniy@aol.co.uk)

ENCHANCING LEGAL PRACTITIONERS’ PROSPECT IN THE NIGERIAN BUDDING PUBLIC PRIVATE PARTNERSHIP (PPP) MARKET- EXPERT COMMENTARY
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1. INTRODUCTION
What exactly is PPP?
PPP is an acronym for Public Private Partnership which describes a transaction that encourages the construction, development, financing, operation and management of public utilities and infrastructure by private proponents
How Can LEGAL PRACTITIONERS Cut into PPP?
We need to develop a mission statement and an action plan for the next ten years.
• Our Mission Statement must focus on: Relevance and our ability to bring value added services to PPP transactions In Nigeria

• Our Action Plan must focus on building a formidable PPP team and presence in the Nigerian PPP Market. This can be achieved by doing the following:

1. Developing Capacities for PPP transaction- get counsel to do courses at the Institute of Public Private Partnership (IP3) in Washington D.C and online.
2. Encouraging trail-blazing research on PPP and related topics (Such as project finance and franchise) to promote individual’s presence in the Nigerian PPP Market.
3. Law Firms should endeavour to become certified PPP practitioners and foremost competitors in the Nigerian and African PPP market.
4. Building presence and relevance at most PPP and infrastructure-base conferences and seminars, both within and outside the country.

2. WHAT ARE THE POTENTIAL PPP MARKETS?
Public utility market-
1. Power – Major players are the Nigerian Electrical Regulatory Commission, (NREC) and the Power holding Company of Nigeria (PHCN)
2. Roads, Bridges and Highways – Major players are the Federal Road Management Agency (FERMA), Ministry of Transportation, State Ministries of Transportation, Lagos Metropolitan Area Transport Authority (LAMATA), etc.
3. Railway, Light-Rail Transportation – Major players are the Ministry of Transportation, the Nigerian Railway Corporation (NRC) and Lagos Metropolitan Area Transport Authority (LAMATA).
4. Modern-City Sea Transportation involving the use of Modern ferries- Major Players are the Lagos State Ferry Services Corporation (including Ferry Services Corporation of other states), the Nigerian Inland Waterways Authority (NIWA), etc.
5. Water and Dam Facilities- Nigerian Inland Waterways Authority (NIWA) and State Water Corporations
6. Airport (Upgrade and Construction of new facilities, Maintenance and Management of facilities and etc)- Major players are the Federal Airport Authority of Nigeria (FAAN) and the Federal Ministry of Transportation, etc.
7. Sea Ports (Upgrade and Construction of new facilities , Maintenance and Management of facilities and etc)- Major Players are the Nigerian Port Authority (NPA), the Ministry of Transportation, etc
Tourism Services Market
1. Construction of new Parks, Hotels, condominiums and the upgrade management of existing tourists’ centres and parks. Major players are the Federal and States Ministries of Tourism. An example is the Motherland LCC’s initiative in developing the tourism potential of the Nigerian Slave Route couple with the antecedent construction of new roads, parks condominium, the Jacksons’ Memorabilia, hotels and other new town facilities like, power, enhanced police and fire services, etc
Infrastructure (Housing and Health Care) Market
1. Construction of new Housing Schemes- Major players are Ministries of Housing and Development, Ministries of Works (at all levels)
2. Development of New Towns. For instance the Lagos Atlantic City and the Greater Port Harcourt City initiatives are all PPP-driven. Major players are the Ministries of Housing and Development, Ministries of Works
3. Construction, Upgrade and Management of modern health care facilities- Players are the Ministries of Health.
3. WHO ARE OUR POTENTIAL CLIENTS?
1. The Public Sector- Government (Federal, State and Local), their departments, agencies and institutions.
2. Private Sectors- Local and foreign companies involved in the development, construction, financing and management of utilities and infrastructure.
3. Multilateral Institutions; African Finance Corporation (AFC),African Development Bank (ADB) International Finance Corporation (IFA), Multilateral Investment Guarantee Agency (MIGA), etc.

4. A SNOPTIC GUIDE ON THE LEGAL AND REGULATORY FRAMEWORK ON PPP IN NIGERIA
The relevant Institutions at the Federal level are:
1. The Federal Executive Council (FEC):which amongst other thing has the statutory obligation to approve all PPP arrangements ;
2. The Infrastructure Concession Regulatory Commission (ICRC): It is a multi-sector regulatory authority which regulates all PPP contracts and arrangements concerning the Federal Government, its Departments, Agencies and Ministries;
3. The Bureau of Public Procurement(BPP): It harmonizes all existing government policies and practices on public procurement and ensuring probity, accountability and transparency in the procurement process in order to flourish investors’ confidence in the polity;
4. The Utility Charges Commission (UCC): The Commission’s functions include evaluation (on continuing basis) of trends in tariffs by any of the public utilities and keeping tariffs and charges under surveillance and propose measures to regulate tariff changes and prevent undue exploitation of consumers by these utility operators
5. Federal Environmental Protection Agency (FEPA): It ensures protection of the environment and conservation of natural resources. As part of the Agency’s responsibility, it administers the Environmental Impact Assessment (EIA) Act Cap E12 LFN, 2004 which contains provisions on projects requiring EIA.
6. National Inland Waterways Authority (NIWA): It grants permits and licenses for sand dredging, pipeline, construction, dredging of slots and crossings of waterways by utility lines, water intake, rock blasting and removal. Thus making it important to obtain NIWA’s permit for all PPP projects that require any of the above mentioned acts to be carried out in the inland waters of Nigeria.
7. The Nigerian Investment Promotion Commission (NIPC): This is not exactly, a key infrastructure-market player but it indirectly regulates the entry of foreign private proponents under a concession agreement into Nigeria and ensures that their investments are stabilized ;
8. The Debt Management Office (DMO): Its principal responsibility is the maintenance of a reliable database for all loans or guarantee taken by the Federal or a State Government or their agencies especially with respect to financing infrastructure contracts or concessions .

NB: The relevant PPP Institutions at the State and Local Governments levels are determined by the prevalent PPP Laws in such states. For Instance we have the Lagos State Executive Council and the Lagos PPP Office situated at the Lagos Ministry of Finance as the major PPP and utility players in Lagos.
5. WHAT SERVICES ARE WE EXPECTED TO OFFER?
If we are acting for the Public Authority (Which is where the bulk of the responsibilities lie), we might be required to offer the following services as Transaction Advisers:
1. Identify the appropriate PPP delivery model. That is, advise on why Concession is preferable to a Lease or Management Contract for instance;
2. Draft the Initial Relationship Agreement between parties, e.g MOU, Partnership Agreement or JVA.
3. Advise on the permits and approvals necessary for the transaction. For instance if NIWA or FEPA’s permit would be required for a Fourth Mainland Bridge Concession Project;
4. Prepare a legal and regulatory framework for the agreed PPP delivery model;
5. Prepare a draft Concession or PPP Agreement;
6. Provide legal assistance and advice all through the procurement process. For instance, preparing a Data Room Protocol for the due diligence stage of the procurement process. The Data Room Protocol guides the entry and exit of the Data Room, retrieval and use of information in the Data Room, etc.
7. Assist and advise the Authority through the contract negotiation stage which immediately succeeds the procurement stage;
8. Perfection of the draft PPP Agreement;
9. Advise and recommend regulations that will ensure output specification ( i.e. terms and conditions are observed and performed within stipulated timelines)
10. In case of a State without adequate legislative framework, we can advise and recommend appropriate clauses that must be included in a PPP Law such PPP would become sustainable in such States;
11. As part of the body of agreements, we may be required to draft a Loan Agreement, a Contract Management Plan or a Performance and Monitoring Plan, etc for the smooth running of the PPP;
12. Advise the parties on compliance and breaches if any throughout the life cycle of the Agreement.